Margeret M.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0120171684 (E.E.O.C. Dec. 18, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Margeret M.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120171684

Hearing No. 520-2012-00267X

Agency No. NPS100191

DECISION

On April 12, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 19, 2017, final order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Facility
Operations Specialist, GS-1640-13 (also referred to as "Facility Manager" or "Maintenance Chief'')
at the Agency’s Gateway National Recreation Area, Fort Wadsworth, Staten Island Unit facility
in Staten Island, New York. She had been employed by the Agency for twenty-three years, and
supervised approximately twenty-eight employees, including two subordinate supervisors. The
Program Manager for the New York Harbor Parks was Complainant’s immediate supervisor.

On February 26, 2010, Complainant filed an EEO complaint, which was amended, alleging that:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. The Agency discriminated against her on the bases of sex (female) in the form
of a hostile work environment and in reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964, when:

a. On August 24, 2009, and January 19, 20, and 22, 2010, a manager
interfered or undermined Complainant's supervisory authority and
responsibilities;

b. Complainant's work projects received more scrutiny as compared to
male counterparts;

c. On November 1, 2009, Complainant was issued a low work
performance rating as compared to male counterparts; and

d. On January 4, 2010, the Agency issued Complainant a 5-day
proposed suspension letter.

2. The Agency discriminated against her in reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964, when on August 23,
2010, a manager attempted to discuss subject matters related to her previously
filed EEO complaint.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s October 2, 2012, motion for a decision
without a hearing and issued a decision without a hearing on March 6, 2017.

The Agency dismissed claims 1(a) – 1(c) for untimely EEO Counselor contact. The AJ found that
Complainant had contacted the EEO counselor on January 19, 2010, which was more than 45 days
after the alleged incidents in August and November 2009. The AJ also found no discrimination
for claims 1(a) – 1(c). Regarding claim 1(d), the AJ found that Complainant failed to establish a
prima facie case of illegal employment based on sex or retaliation. The AJ added that even if it
assumed Complainant established a prima facie case, the Agency articulated legitimate,
nondiscriminatory reasons for issuing the proposed suspension letter, which was later reduced to
a letter of reprimand via a formal Agency grievance process.

As for claim 2, Complainant alleged that, after she filed her EEO complaint underlying this case,
the Program Manager acted in retaliation when he attempted to discuss subject matters related to
her EEO complaint. Complainant claimed that the Program Manager tried to persuade her that
there was nothing inappropriate about her staff visiting his office especially as it concerned a theft
report. Complainant further stated that when she tried to end the meeting, he "nastily" told her to
remain seated and continued the conversation.
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The Program Manager denied Complainant’s account of the conversation, contending it involved
management issues and that he did not address matters subject to the EEO complaint. He also
denied engaging in any threatening or angry action. The AJ found that there were no identified
witnesses who could confirm or undermine the two versions of what was actually said or done
during the conversation. The AJ found no retaliation for claim 2.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. This appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine"
if the evidence is such that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. We
find that the issuance of a decision without a hearing in this case was proper.

We find that claim 1(c) was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for
untimely EEO Counselor contact.

On the merits, we find no error in the AJ’s analysis of Complainant’s claims in 1(a) and 1(b) that
the Program Manager undermined her authority as a supervisor when he met or spoke with
Complainant's subordinates on January 19, 20, and 22, 2010. Complainant alleged that the Program
Manager repeatedly broke the chain of command by meeting with her subordinates without her
knowledge. Specifically, she noted that when a maintenance mechanic, her subordinate, reported
a theft at the shop to the Program Manager on January 19, 2010, she was not informed of the
meeting, nor included in the remediation. She also noted that on January 20, 2010, the Program
Manager informed her of a fire inspection at a building under her responsibility and required
creation of a project to correct the findings, but she was not involved in the inspection. Finally, she
noted that on January 22, 2010, the Program Manager met with members of Complainant's staff
to discuss allegations that Complainant and a male supervisor were knowingly permitting
employees to leave work early.

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The Program Manager explained, with respect to the meeting with Complainant’s subordinate on
January 19, 2010, that the employee came to him to report a theft and he accompanied the
employee to the Park Police, who conduct investigations of such matters. The Program Manager
stated that the Park Police recommended confidentiality and, in accord with this recommendation,
the Program Manager did not notify Complainant about the investigation. He further explained
that he did not inform Complainant about the January 22 meeting with her subordinates because
there had been allegations implicating her and a male supervisor in the misbehavior being
investigated. We find that Complainant failed to show that discrimination motivated any of the
actions in claims 1(a) or 1(b) or that the specific conduct alleged was sufficiently severe as to
constitute a discriminatory hostile work environment.

Regarding claim 1(d), the January 4, 2010 proposed suspension for "Disrespectful conduct towards
another employee" and "Disrespectful conduct towards your supervisor”, we concur with the AJ
that the Agency articulated legitimate, nondiscriminatory reasons for issuing this discipline and
that Complainant failed to show these reasons were a pretext for sex discrimination or reprisal.
The record revealed that in August 2009, a female subordinate supervisor (FSS) reported to
Complainant that a male maintenance employee had called her a “bitch” in front of staff.
Dissatisfied with Complainant’s handling of her complaint, FSS reported the matter to the Program
Manager and a meeting was held. During the discussion, FSS asked Complainant "what would
you do if I called you a bitch?" and Complainant admitted that she said, "I would probably call
you one back." Additionally, on December 22, 2009, Complainant's subordinate supervisor sent a
message to the Program Manager which alleged that Complainant had made disparaging remarks
about the Program Manager being “the devil” and that he and his wife were “swingers” in the
presence of staff employees.

The Program Manager and a Human Resources representative met with Complainant to discuss
the accusation, and Complainant admitted making the disparaging remarks about the Program
Manager. On August 13, 2010, the Deputy Superintendent issued her decision concerning
Complainant's January 4, 2010 proposed suspension letter. The Deputy Superintendent noted that
in a subsequent discussion between Complainant and the Program Manager, Complainant told the
Program Manager that he had not “worked here long enough to give me advice." Accordingly,
based upon Complainant's conduct and behavior in the workplace, the Deputy Superintendent said
that she determined that the described incidents were "inappropriate and disrespectful" and that
formal discipline was necessary to correct the situation. However, based upon such factors as
length of Complainant’s Agency service and lack of prior disciplinary record, as well as the fact
that Complainant had apologized to her subordinate supervisor, Complainant's formal discipline
was reduced from a suspension action to a letter of reprimand. Based on these facts, we have no
basis for finding that Complainant’s sex or prior EEO activity was a factor in this disciplinary
action. Complainant has not shown that the Agency’s discipline decision was motivated by
discrimination.

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Finally, with respect to Complainant’s contention in Claim 2 that the Program Manager retaliated
against her when he attempted to discuss matters related to her EEO complaint, we concur with
the AJ that the alleged discriminatory conversation concerned workplace matters that fell within
his managerial authority. In the absence of any evidence or witness statement that Complainant’s
EEO complaint was mentioned or that she suffered any adverse action because of this
conversation, we concur with the AJ that Complainant did not establish a prima facie case of
reprisal. There is no persuasive evidence that the content of the conversation occurred as alleged
by Complainant. Therefore, we cannot find that Complainant was reasonably likely to be deterred
from pursuing the EEO complaint process.

CONCLUSION

The Agency’s decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 18, 2018
Date